People v. Arevalo, B259998
Citation | 244 Cal.App.4th 836,198 Cal.Rptr.3d 343 |
Decision Date | 08 February 2016 |
Docket Number | B259998 |
Court | California Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Edgar Omar AREVALO, Defendant and Appellant. |
California Appellate Project, Jonathan B. Steiner, Los Angeles, Lisa Ferreira and Susan Hier, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Noah P. Hill and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
Edgar Omar Arevalo appeals from the trial court's order denying his petition for resentencing under the Three Strikes Reform Act of 2012 (hereafter, Proposition 36 or the Act). The Act amended Penal Code 1 sections 667 and 1170.12 (the Three Strikes law) to reduce the punishment for some third strike offenses that are neither serious nor violent. The Act also added section 1170.126 to create a procedure by which some inmates already serving third strike sentences may seek resentencing in accordance with the new sentencing rules.
Arevalo is serving an indeterminate sentence under the Three Strikes law, having been found guilty in a bench trial of grand theft auto and driving a vehicle without the owner's consent. The trial judge, however, acquitted Arevalo of the charge of possession of a firearm by a felon and found the "armed with a firearm" allegation to be not true.
Arevalo subsequently petitioned for a reduction of his sentence pursuant to Proposition 36, arguing that in light of his acquittal and the not-true enhancement finding, he was eligible for resentencing because he had not committed the disqualifying conduct of being armed with a weapon during the commission of his "current offense."2 (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
The resentencing court, which by stipulation was not the trial court that had rendered the verdicts and findings, rejected Arevalo's contention. Reaching its findings under a preponderance of the evidence standard, the resentencing court concluded that Arevalo had been armed with a weapon during the commission of his offenses. Accordingly, it held that Arevalo was ineligible for resentencing under section 1170.126.
Arevalo appeals, contending that the resentencing court erred in finding him ineligible based on facts not established beyond a reasonable doubt. We agree, and we reverse and remand for further proceedings. Under a properly applied "beyond a reasonable doubt" standard, Arevalo's acquittal on the weapon possession charge, and the not-true finding on the allegation of being armed with a firearm, are preclusive of a determination that he is ineligible for resentencing consideration. As a matter of law, therefore, Arevalo is eligible for resentencing. What remains to be adjudicated, however, is whether, under a preponderance of the evidence standard,3 he should be resentenced or whether he would pose an unreasonable risk of danger to public safety such that he should not be resentenced.
On November 9, 1994, the victim left the keys in the ignition of his car when he stopped momentarily to drop off his dog at the home of relatives. When he returned, the car was gone. The victim reported the theft of the car to the police. Approximately 30 minutes later, a police officer observed the victim's car pull in at a gas station. Arevalo exited the car and was arrested. The officer found an unloaded revolver on the passenger seat of the car.
Arevalo said the gun did not belong to him. The firearm was not registered to either the victim or Arevalo.4
A bench trial was held in April 1995. Arevalo was charged with grand theft of a vehicle (§ 487h, subd. (a)), driving a vehicle without the owner's consent (Veh. Code, § 10851 ), and being a felon in possession of a firearm (former § 12021, subd. (a)(1)).5 As to the first two counts, the information also alleged Arevalo was armed with a firearm in the commission of these offenses (§ 12022, subd. (a)(1)).
Arevalo was also charged with residential burglary arising from a different incident.
The trial court found Arevalo guilty of grand theft auto and driving a vehicle without the owner's consent. Arevalo was acquitted of the burglary and possession of a firearm charges, and the court found the "armed with a firearm" allegation not true. The court further found that Arevalo had suffered multiple prior "strikes" under the Three Strikes law and sentenced him to 25 years to life for grand theft auto. The court stayed a similar term for driving without the owner's consent pursuant to section 654's prohibition on multiple punishment.
In the first appeal of this matter, we affirmed Arevalo's conviction but remanded for resentencing in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. (People v. Arevalo (Sept. 4, 1996, B093496) [nonpub. opn.].) On remand, the trial court again sentenced Arevalo to 25 years to life. We then affirmed that sentence. (People v. Arevalo (May 15, 1998, B110091) [nonpub. opn.].)
On November 6, 2012, California voters approved Proposition 36, which amended the Three Strikes law to reduce punishment for certain offenses. Later that month, Arevalo petitioned the court for recall of his sentence and resentencing pursuant to section 1170.126. In January 2013, the resentencing court found the petition had stated a prima facie basis for resentencing and issued an order to show cause.
In October 2013, the District Attorney filed opposition and argued Arevalo was ineligible for resentencing because he was armed with a firearm during the commission of his "current offense."6 In October 2014, the resentencing court held a hearing on the matter and, based on its review of the testimony at trial, the court concluded Arevalo "was armed within the meaning of Penal Code sections 667 [, subd. (e) ](2)(C)(iii) and 1170.12 [, subd. (c) ](2)(C)(iii), and therefore [is] ineligible for resentencing." The court noted that the original trial court had found the "armed with a firearm" allegation not true, but stated that "[a] finding of an allegation of ‘not true’ does not mean the non-existence of guilt, factual innocence, or incredulity of testimony given at trial." Arevalo timely appealed.7
Arevalo contends the resentencing court erred in concluding he was ineligible for resentencing based on facts not established by his underlying conviction.
In the California Supreme Court's recent opinion in (People v. Johnson (2015) 61 Cal.4th 674, 189 Cal.Rptr.3d 794, 352 P.3d 366 (Johnson )) addressing the Act, the court summarized the Act's purpose and provisions as follows:
To continue reading
Request your trial-
People v. Perez
...640 ; People v. Bradford , supra , 227 Cal.App.4th at pp. 1334–1336, 174 Cal.Rptr.3d 499 ; but see People v. Arevalo (2016) 244 Cal.App.4th 836, 852–853, 198 Cal.Rptr.3d 343.) Whatever implications recent pronouncements may have with respect to the determination whether, for purposes of imp......
-
People v. Cooper
...Proposition 36 reduced "the punishment for some third strike offenses that are neither serious nor violent." ( Arevalo , supra , 244 Cal.App.4th at p. 841, 198 Cal.Rptr.3d 343.) Similar to Senate Bill 1437, Proposition 36 also added section 1170.126 , which "create[d] a procedure by which ......
-
People v. Newman
...(c)(2)(C)(i) [same].)” (Blakely , supra , 225 Cal.App.4th at p. 1059, 171 Cal.Rptr.3d 70 ; see also People v. Arevalo (2016) 244 Cal.App.4th 836, 847, 198 Cal.Rptr.3d 343 (Arevalo ).) Finally, as defendant concedes, the Proposition 36 court is authorized to make its factual findings regardi......
-
People v. Frierson
...offender" ( id . at p. 1033, 171 Cal.Rptr.3d 55 ), noting that it omits any pleading and proof requirement. People v. Arevalo (2016) 244 Cal.App.4th 836, 198 Cal.Rptr.3d 343 disagreed with Osuna and concluded the beyond a reasonable doubt standard applies to ineligibility factors for resent......